Background
Sprague River Cattle Co. sued the State of Oregon, the Oregon Water Resources Department, and its director, alleging that the agency unconstitutionally took its Klamath Basin water rights without compensation. The company alleged that OWRD’s quantification of the Klamath Tribes’ senior instream water rights deprived it of the benefit of its own rights.
In discovery, SRCC sought documents concerning the tribal claims and OWRD’s determinations. OWRD produced more than 78,000 pages but withheld documents protected by attorney-client privilege. SRCC moved to compel production of approximately 446 privileged documents more than 25 years old, arguing that Oregon’s public records law would require their disclosure. It did not make a public-records request. The trial court ordered production subject to a protective order, and OWRD sought mandamus relief.
The Court’s Holding
The Oregon Supreme Court held that the trial court erred by compelling production of the privileged documents through civil discovery. ORCP 36 B limits discovery to relevant matters that are not privileged, and attorney-client communications that were intended to be confidential when made remain privileged for discovery purposes even if they may be subject to public disclosure after 25 years.
The court explained that civil discovery and the public records law are separate, independent routes for obtaining government records. Its earlier decision in City of Portland v. Bartlett established that certain privileged public records more than 25 years old may be disclosable under the public records law, but that result does not permit a litigant to bypass public-records procedures and obtain otherwise privileged documents through discovery. The court issued a peremptory writ of mandamus directing the trial court to vacate its discovery order.
Key Takeaways
- Attorney-client privileged communications are outside the scope of Oregon civil discovery, even when the records may be available under the public records law.
- A litigant seeking records from a public body may use discovery or public-records procedures, but must comply with the limits of the chosen process.
- Mandamus is available to correct a discovery order requiring disclosure of privileged material because disclosure cannot be undone on appeal.
Why It Matters
The decision draws a firm procedural line after Bartlett. A public-records disclosure obligation does not itself eliminate the attorney-client privilege for litigation discovery.
Parties litigating against Oregon public bodies who want records potentially available under the public records law must pursue that statutory process, including its notice and review procedures, rather than use discovery to obtain privileged communications.